Court of Appeals Opinions

Format: 11/26/2014
Format: 11/26/2014
In Re: Paige A.F., et al.
E2014-00450-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Brandon Fisher

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Joann P.F. (“Mother”) and Gary A.M. (“Father”) to the minor children, Paige A.F., Tristan J.A.M., and Gaige D.W.M. (“the Children”). After a trial, the Juvenile Court for Anderson County (“the Juvenile Court”) terminated Mother’s and Father’s parental rights to the Children after finding that clear and convincing evidence was proven of grounds to terminate Mother’s and Father’s parental rights for substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3), and that clear and convincing evidence was proven that it was in the Children’s best interest for Mother’s and Father’s parental rights to be terminated. Mother and Father appeal the termination of their parental rights to this Court. We find and hold that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence, and we affirm.

Anderson County Court of Appeals 11/26/14
Gregory Lance Peterson v. Tiara Blanco (Peterson)
W2014-01423-COA-R10-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Karen R. Williams

This matter arises from post-divorce proceedings regarding the parties’ minor child. Mother filed an application for extraordinary appeal after the trial court designated Father as Temporary Primary Residential Parent and ordered that Father could enroll the parties’ child in a school in his school district. Mother’s application submitted three issues for review, but we grant extraordinary review only as to the issue regarding the trial court’s order designating Father as Temporary Primary Residential Parent and ordering that Father could enroll the parties’ child in a school in his school district. We vacate and remand.

Shelby County Court of Appeals 11/26/14
Sheila Christine Jones Calloway v. Willard Randall Calloway
E2014-00558-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Frank V. Williams, III

This appeal arises from a divorce. Sheila Christine Jones Calloway (“Wife”) sued Willard Randall Calloway (“Husband”) for divorce in the Chancery Court for Roane County (“the Trial Court”). The Trial Court granted Wife a divorce on the ground of adultery by Husband. The Trial Court equally divided the parties’ marital residence but awarded Husband’s onehalf interest in the marital residence to Wife as alimony in solido. The Trial Court also awarded Wife alimony in futuro and attorney’s fees. Husband appeals. Given the parties’ relative earning capabilities and other relevant circumstances of this case, we affirm the Trial Court’s award to Wife of Husband’s one-half interest in the marital residence as alimony in solido. However, once Wife was awarded Husband’s one-half interest in the marital residence, she no longer was financially disadvantaged relative to Husband, and, therefore, the Trial Court erred in awarding Wife alimony in futuro and attorney’s fees. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

Roane County Court of Appeals 11/26/14
In Re: Jacob B.
M2014-00933-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ronald Thurman

In this termination of parental rights case, Father appeals the trial court’s finding that termination of his parental rights is in the child’s best interests. Father was convicted of murdering the child’s mother and is imprisoned on a life sentence. We have reviewed the evidence and affirm the trial court in all respects.

White County Court of Appeals 11/25/14
In Re: Caira D. et al.
M2014-01229-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

Department of Children’s Services filed petition to terminate mother and father’s parental rights to two minor children. Mother subsequently surrendered her parental rights, and the trial court found father abandoned the minor children by willful failure to support and willful failure to visit. The trial court also found termination of father’s parental rights was in the best interests of the children. Father appeals. We affirm the trial court’s finding that father abandoned his children by willfully failing to support them;however,we have concluded that the evidence is insufficient to clearly and convincingly establish that father’s visitation with his children was merely token and that he willfully failed to visit his children. We affirm the trial court’s finding that termination of father’s parental rights is in the best interests of the children. Therefore, we affirm the termination of father’s parental rights.
 

White County Court of Appeals 11/25/14
Earl T. Adams v. Air Liquide America, L. P. et al.
M2013-02607-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

The sole issue presented in this appeal concerns the constitutionality of Tenn. Code Ann. § 29-28-103, the ten-year statute of repose under the Tennessee Products Liability Act and the exceptions to the statute of repose for asbestos claims and silicone gel breast implant claims, but not for silica-related claims. After working as a sandblaster for thirty years, Plaintiff developed silica-related injuries. Thereafter, Plaintiff commenced a products liability action against several silica manufacturers and suppliers, which was filed outside the ten-year period. When the defendants moved for summary judgment contending the action was timebarred by the ten-year statute of repose, Plaintiff challenged the constitutionality of the statute of repose as applied to silica claimants on equal protection grounds. Utilizing a rational basis analysis, the trial court found that silica claims were not similarly situated by injury or class to asbestos claims, and, if they were similarly situated, a rational basis exists to distinguish between the two. The trial court also found that silica has no similarity to silicone gel breast implants. Thus, the trial court summarily dismissed the action as timebarred based on the ten-year statute of repose under the Tennessee Products Liability Act, specifically Tenn. Code Ann. § 29-28-103(a). We affirm.

Davidson County Court of Appeals 11/25/14
Claude R. Ellis v. Melisa Jane Godfrey Ellis
E2013-02408-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

The issue on this appeal is whether the parties’ prenuptial agreement (the agreement) is valid and enforceable. The trial court held that it was not. The court did so based upon its finding that Claude R. Ellis (Husband) failed to prove that he provided a full and fair disclosure of his assets to Melisa Jane Godfrey Ellis (Wife) before the agreement was executed. The trial court further found (1) that, given the date the draft agreement was furnished to wife, she did not have an opportunity to seek independent counsel for advice; (2) that the agreement was unfair; and (3) that Wife was under duress when the draft was presented to her. Applying the principles set forth by the Supreme Court in Randolph v. Randolph, 937 S.W.2d 815 (Tenn. 1996), and its progeny, we affirm the judgment of the trial court.

Bradley County Court of Appeals 11/25/14
In Re Chelsea B. et al.
E2014-00758-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Daniel G. Boyd

This is a termination of parental rights case involving three minor children. In April 2012, temporary custody of the children was granted to the Tennessee Department of Children’s Services (“DCS”), and the children were placed in foster care. DCS subsequently filed a petition to terminate the parental rights of the mother and father on September 24, 2013. The petition alleged, as statutory grounds for termination, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, persistent conditions, and severe child abuse. Following a bench trial, the trial court granted the petition as to the mother upon finding that DCS had proven by clear and convincing evidence the grounds of (1) abandonment by failure to provide a suitable home and (2) persistence of the conditions leading to removal. The court also found clear and convincing evidence that termination of the mother’s parental rights was in the children’s best interest. The mother has appealed.1 Discerning no error, we affirm.

Hawkins County Court of Appeals 11/25/14
In Re: Valena E.
W2014-00719-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Weber McCraw

The Notice of Appeal was not timely filed, and we therefore have no jurisdiction to consider this appeal. Consequently, this appeal is dismissed.

McNairy County Court of Appeals 11/25/14
Ann C. Akard v. Wayne F. Akard
E2013-00818-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John S. McLellan, III

This is a divorce case. After the trial court entered the final decree of divorce and awarded Wife/Appellee attorney’s fees associated with a motion to compel, Husband/Appellant filed this appeal. Although Husband did not formally file a motion to recuse either trial judge involved in this case, his appeal centers on alleged judicial and opposing counsel misconduct. Husband also seeks a new trial. We affirm.

Sullivan County Court of Appeals 11/25/14
M&T Bank v. Joycelyn A. Parks, et al.
W2013-02580-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

The trial court dismissed this detainer appeal for failure to post a bond in compliance with Tennessee Code Annotated Section 28-18-130(b)(2). Because Appellant’s brief contains no argument regarding the applicability of Tennessee Code Annotated Section 28-18-130(b)(2), we affirm.

Shelby County Court of Appeals 11/24/14
In Re Serenity S.
W2014-00080-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Christy R. Little

This is a termination of parental rights case brought by the guardian ad litem. The trial court terminated Mother/Appellant’s parental rights on the grounds of severe child abuse pursuant to Tennessee Code Annotated Section 36-1-113(g)(4), and persistence of conditions under Tennessee Code Annotated Section 36-1-113(g)(3). The trial court also found, by clear and convincing evidence, that termination of Mother’s parental rights was in the child’s best interest. Because there is clear and convincing evidence in the record to support both the grounds for termination of Mother’s parental rights and the trial court’s finding on best interest, we affirm and remand.

Madison County Court of Appeals 11/24/14
Barbara Lynn Horine v. James Alan Horine
E2013-02415-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Larry Michael Warner

In this divorce appeal, Wife appeals the trial court’s rulings with regard to the calculation of child support, the award of alimony, the requirement that she reimburse Husband for one-half of the mortgage payments on the marital home until the home is sold, and the trial court’s refusal to order an income assignment to secure Husband’s child support obligation. We vacate the trial court’s judgment with regard to child support and alimony, and remand for the entry of an order containing appropriate findings of fact and conclusions of law. We affirm the trial court’s order requiring Wife to reimburse Husband for the mortgage payment. However, we reverse the trial court’s refusal to order an income assignment to secure the child support obligation. Affirmed in part, vacated in part, and reversed in part.

Cumberland County Court of Appeals 11/24/14
Michael Lee Horton v. Brenda Kay Horton
W2014-00880-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daniel L. Smith

This divorce action follows a thirty-three year marriage. Plaintiff Husband appeals the trial court’s property division, award of alimony in futuro to Wife, and award of attorney’s fees to Wife. We affirm.

Hardin County Court of Appeals 11/21/14
In Re Shaneeque M.
E2014-00795-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Tammy M. Harrington

This is a parental rights termination appeal brought by the mother. The trial court found clear and convincing evidence to support the grounds for termination and clear and convincing evidence that termination was in the child’s best interest. The mother appeals. We affirm.

Blount County Court of Appeals 11/20/14
Commercial Painting Company, Inc. v. The Weitz Company, LLC et al.
W2013-01989-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kenny W. Armstrong

In this construction contract dispute, the trial court granted summary judgment in favor of the defendant general contractor as to all of the plaintiff subcontractor’s tort claims. The parties proceeded to trial on the remaining issues and judgment was awarded in favor of the subcontractor. Both parties raise numerous issues on appeal. Because we conclude that the trial court applied an improper standard in granting summary judgment, we vacate the order of summary judgment in favor of the general contractor. In addition, because the subcontractor’s tort claims may alter the remaining issues in this case, we decline to consider the remaining issues raised by the parties. Vacated and remanded.

Shelby County Court of Appeals 11/18/14
In Re: Cidney L.
W2014-00779-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Clayburn Peeples

Mother appeals the trial court’s termination of her parental rights. She argues that the trial court erred in holding that clear and convincing evidence established that she engaged in conduct exhibiting a wanton disregard for the welfare of the child prior to her incarceration and that termination was in the child’s best interest. We have determined that there is clear and convincing evidence in the record to support both of the trial court’s findings. We affirm.

Crockett County Court of Appeals 11/18/14
Centimark Corporation v. Maszera Company, LLC.
E2013-02689-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Daryl R. Fansler

This suit arises as a result of a contract to install a roof on a commercial building. The building’s owner argued that the roof has leaked since its installation and that the roofer would not or could not satisfactorily repair it. The roofer asserted that the roof had experienced some leaks but that all had been repaired. The roofer alleged that it had performed according to the contract and sued for total payment. The owner of the building alleged, inter alia, that the roofer breached the contract by failing to provide adequate materials and proper workmanship and filed a counter-complaint. The trial court issued its ruling in favor of the building owner on the counter-complaint and awarded $220,374.96 in damages. The court dismissed the roofer’s suit. The court also dismissed the building owner’s other claims against the roofer for deceptive business practices and for filing an improper lien. Both sides appeal. We affirm.

Knox County Court of Appeals 11/18/14
Michael L. Schwartz, et al. v. Diagnostix Network Alliance, et al.
M2014-00006-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Carol Soloman

This case involves an agreement between a distributor of medical tests and a healthcare consultant. The agreement provided that the consultant would earn a commission on sales of the medical test that he solicited on behalf of the distributor. After several months, the distributor terminated the agreement. The consultant filed a lawsuit against the distributor. The consultant alleged that the distributor breached its duty of good faith under the contract by terminating the agreement in order to avoid paying commissions and by failing to provide an adequate sales force to assist the consultant in making sales. The consultant alleged that the distributor breached a separate verbal contract for the development of marketing materials. The consultant also alleged that the distributor fraudulently misrepresented its intent to compensate the consultant for his efforts in soliciting orders for the medical test. The trial court dismissed the consultant’s fraud claim and granted summary judgment to the distributor on each of the remaining claims.  We affirm the judgment of the trial court with respect to the consultant’s breach of good faith and fraud and misrepresentation claims. However, we find that the trial court erred in granting summary judgment on the consultant’s claim that the distributor breached a separate verbal contract. We also vacate and remand the trial court’s award of attorney’s fees for reconsideration after issues related to the verbal contract are resolved.

Davidson County Court of Appeals 11/17/14
Ronald T. Daugherty v. Lavada J. Doyle, et al
M2013-02509-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

A shareholder in a closely-held family business brought this action pursuant to Tenn. Code Ann. § 48-26-102(b) to inspect the company’s accounting records. The trial court determined that the shareholder’s request was made in good faith and for a proper purpose. On appeal, the defendants assert that the trial court erred in finding that the shareholder’s request was made in good faith and in awarding him his attorney fees and the expenses he incurred in hiring a forensic accountant. We reverse the trial court’s decision to award the shareholder the expenses he incurred for the forensic accountant, but remand for a determination of an award based on the accountant’s fees concerning testimony about whether the records requested by Mr. Daugherty were accounting records. In all other respects, we affirm the decision of the trial court.

Davidson County Court of Appeals 11/17/14
In Re: J.C.B.
M2014-01112-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

This appeal arises from a decision by the Juvenile Court for White County terminating Mother’s parental rights to her son. Child was placed into emergency custody by the Tennessee Department of Children’s Services (“DCS” or “the Department”), pursuant to Tenn. Code Ann. § 37-1-113, when he was two months old after law enforcement officials found a methamphetamine lab in the living room of Mother’s apartment while Child and Father were present. The juvenile court issued a protective custody order and appointed a guardian ad litem for Child. Between that time and the termination hearing, three permanency plans were created. Mother was incarcerated multiple times and failed to complete any of the requirements of her permanency plans. DCS tried to schedule visitation for Mother, provide her information about rehabilitation programs, keep in contact with her, and administer drug screens,but it had difficulty due to Mother’s repeated incarcerations and failure to keep in contact with DCS. DCS filed a petition to terminate Mother’s parental rights. The court terminated Mother’s parental rights; held that the requirements of the permanency plans were all reasonable; and held that DCS made reasonable efforts to assist Mother in complying with the requirements of the plans. We affirm the decision of the juvenile court.

White County Court of Appeals 11/17/14
Barbara M. Hicks Vick v. Brandon P. Hicks
W2013-02672-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

This appeal arises from the trial court’s dismissal of Appellant Brandon Hicks’ (“Husband”) petition to terminate his alimony obligation. After his ex-wife, Appellee Barbara Hicks Vick (“Wife”), remarried, Husband petitioned the trial court for relief under Tennessee Code Annotated § 36-5-121(g)(2)(C). Wife moved to dismiss Husband’s petition, arguing that the  parties’ marital dissolution agreement (“MDA”) contained a non-modification clause with respect to Husband’s alimony obligation. The trial court granted Wife’s motion, and Husband filed a timely appeal to this Court. We affirm.

Shelby County Court of Appeals 11/17/14
In Re Kendal A.
W2014-00638-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge W. Michael Maloan

The trial court terminated Mother’s parental rights on the grounds of abandonment by an incarcerated parent and severe child abuse, and found that termination of Mother’s rights was in the child’s best interest. We affirm.

Obion County Court of Appeals 11/17/14
Brenda Y. Hannah v. Sherwood Forest Rentals, LLC, et al.
E2014-00082-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge O. Duane Slone

This appeal results from the grant of summary judgment to the defendants in a premises liability action. The plaintiff fell while descending a set of wooden stairs leading to a rental cabin. The plaintiff filed the instant action against the owners of the cabin and the rental company, which manages and maintains the cabin. In granting summary judgment to the defendants, the trial court determined that there were no genuine issues of material fact by which a reasonable jury could find that either defendant had actual or constructive notice of any allegedly defective condition existing that caused or contributed to the plaintiff’s fall. The plaintiff has appealed. Discerning no error, we affirm.

Sevier County Court of Appeals 11/17/14
In Re Austin A. et al.
E2014-00910-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Arnold

This case concerns the termination of the mother’s parental rights. We have determined that the record contains clear and convincing evidence to support terminating the mother’s parental rights on the ground relied upon by the trial court. The record further supports the conclusion that terminating the mother’s parental rights is in the children’s best interest. Accordingly, we affirm the findings of the trial court.

Washington County Court of Appeals 11/17/14